United States v. Gavin Roderick White, A/K/A Joe White

366 F.3d 291, 2004 U.S. App. LEXIS 8735, 2004 WL 943796

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 4, 2004
• Docket: 03-6739
• Status: Published

Opinions

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

In this case, a habeas petitioner contends that the Government made an oral promise, never incorporated into his written plea agreement, that he could conditionally plead guilty, retaining the right to appeal the denial of his suppression motion. It is undisputed that the petitioner’s lawyer erroneously informed him that the guilty plea was conditional and that the petitioner would not have pleaded guilty absent this representation; moreover, the Government conceded, and the district court found, that in making this representation, the petitioner’s lawyer provided constitutionally ineffective assistance of counsel, which rendered the petitioner’s guilty plea involuntary. Nevertheless, without holding an evidentiary hearing, the court found the petitioner had not proved by a preponderance of the evidence that the Government had made the asserted oral promise (that the petitioner could conditionally plead) and so summarily denied the petitioner’s request to reform his plea agreement. Because we believe that material factual disputes require an evidentia-ry hearing in this case, we vacate and remand for further proceedings.

I.

A grand jury charged Gavin Roderick White with one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (1994). Apparently, the police uncovered the cocaine during a traffic stop of White’s car; White moved to suppress the cocaine, asserting that the search of his car proceeded without his consent. The district court denied the motion to suppress.

Thereafter, pursuant to a written plea agreement, White pleaded guilty to the charged offense. Neither that plea agreement nor the district court’s plea colloquy expressly informed White that by pleading guilty he waived his right to appeal the suppression motion. But the plea agreement, which contained an integration clause, also did not state that White’s guilty plea was conditional. Thus, when White appealed the denial of his suppression motion to this court, we dismissed the appeal because his plea agreement did not include the express provision, described in Fed.R.Crim.P. 11(a)(2), that would have made it conditional. United States v. White, No. 98-4371, 1999 WL 371610 (4th Cir. June 8,1999)(per curiam).¹

Represented by new counsel, White then moved, under 28 U.S.C. § 2255 (2000), that his conviction and sentence be vacated and he be granted “all relief to which he may be entitled.” First, White asserted that his guilty plea was not voluntary and knowing because, when he entered into the plea agreement, he believed “that he was making a conditional plea, subject to the appeal of the denial of his suppression motion.” Second, White asserted that the “United States Attorney made an oral agreement” that White’s “guilty plea would be conditional, subject to the appeal of his suppression motion,” and that this “fraudulent oral agreement” induced White to enter the plea. Finally, White asserted that he had been denied effective assistance of counsel because his counsel during plea negotiations, David Heilberg, erroneously “assured him that he could appeal the denial of his suppression motion after he pled guilty.” White declared “under penalty of perjury” that all three of these assertions were “true and correct.”

In response, the Government moved for partial summary judgment, agreeing that White’s allegations amounted to ineffective assistance of counsel and urging the court to grant White’s “initial request” to vacate and then reinstate judgment, restarting the time period for filing a notice of appeal. White filed a response asserting that the Government mischaracterized the relief he requested, and clarifying that he in fact wished to have his conviction vacated. Nonetheless, the district court granted the relief advocated by the Government, vacating, then reinstating, the original conviction and sentence with a later date of entry, permitting an additional ten days for appeal.

Because this did not provide White any real relief — he would still be procedurally barred from challenging the search on appeal because his written plea agreement remained unconditional — White filed a motion for reconsideration asking the district court to either allow him to plead anew, or “[i]n the alternative” reform the plea agreement to reflect the assertedly agreed-upon conditional plea. The district court granted White’s motion to reconsider and referred the case to a magistrate judge “to conduct any or all proceedings that may arise in this civil action, including an evidentiary hearing,” and to submit all findings and recommendations to the district court.

Pursuant to this referral, the magistrate judge ordered discovery and scheduled an evidentiary hearing. Four days after entry of the discovery order and well prior to the scheduled evidentiary hearing, however, the Government moved that White be granted the relief “he sought,” which the Government characterized as “vacat[ing] the conviction and sentence” and returning. White for trial. In reply, White again disputed the Government’s characterization of the requested relief, specifying that he was not merely seeking vacatur, but also asking the court to reform the plea agreement to reflect a conditional plea. Responding, the Government argued that reformation was not a proper remedy because it had never consented to a conditional plea.² But neither at this point nor at any other time in these proceedings did the Government offer any affidavit or other direct evidence denying that it had entered into an oral agreement that White’s plea would be conditional.

Nevertheless, no evidentiary hearing was ever held. Instead, the magistrate judge heard oral argument on whether the court should vacate White’s conviction and sentence and set the case for trial (as the Government argued), or vacate the conviction and sentence only to reenter them under a reformed conditional plea agreement (as White argued). Concluding that the Government had indeed promised White he would be entitled to appeal his suppression motion, or at the very least acquiesced to a conditional plea by failing to challenge White’s allegations through the greater part of the proceedings, the magistrate judge recommended granting White’s motion to vacate his guilty plea, permitting him to plead anew conditionally-

The district court disagreed. Noting that neither party had produced “hard, objective evidence” supporting their respective assertions, the court found dispos-itive White’s oral affirmation of the unconditional written plea agreement during his Rule 11 hearing. The court refused to order reformation of the plea agreement, concluding that White had failed to prove the existence of an oral agreement by a “preponderance of the evidence.” The court concluded, however, as the parties had agreed, that White’s plea was involuntary due to the ineffective assistance of counsel. Accordingly, the district court vacated White’s conviction and sentence and set the case for trial. The court denied White’s subsequent motion to reconsider, but did grant a certifícate of appeal-ability.

Before us, then, it is undisputed that White’s counsel at the time of the plea negotiations, David Heilberg, erroneously informed White that he could appeal the denial of his suppression motion notwithstanding the failure of the written plea agreement to contain any provision permitting this. Similarly, it is uncontrovert-ed that White relied on his lawyer’s representation in pleading guilty, which he would not have done absent this representation. Moreover, the Government concedes, and the district court found, that these facts equate to ineffective assistance of counsel, rendering White’s guilty plea involuntary and mandating vacatur of White’s conviction and sentence. Thus, as the parties agree, the only question we face is a narrow one: did the district court err in refusing to grant White any relief on his claim that the Government actually promised that he could conditionally plead?

II.

It is well-established “that when a plea rests in any significant degree on a promise ... of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). Hence, as the Government properly conceded at oral argument, if a Government representative orally promised White that he could conditionally plead, White “would be entitled to the relief he’s asking for” despite his attorney’s failure to preserve this right in the written plea agreement. Proof of the Government’s refusal to abide by such an oral promise would clearly constitute evidence of “government overreaching” or “fraud in the inducement,” admissible without running afoul of the parol evidence rule. United, States v. Garcia, 956 F.2d 41, 44 & n. 4 (4th Cir.1992); see also United States v. Harvey, 791 F.2d 294, 300-01 (4th Cir.1986).³

This is not to say that a defendant’s solemn declarations in open court affirming that agreement do not “carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Indeed, because they do carry such a presumption, they present “a formidable barrier in any subsequent collateral proceedings.” Id. To adopt a more lenient approach and “allow indiscriminate hearings in federal post-conviction proceedings ... would eliminate the chief virtues of the plea system—speed, economy, and finality.” Id. at 71, 97 S.Ct. 1621.

Yet the Supreme Court expressly held in Blackledge that “a prisoner in custody after pleading guilty, no less than one tried and convicted by a jury, is entitled to avail himself of the writ [of habeas corpus] in challenging the constitutionality of his custody.” Id. at 72, 97 S.Ct. 1621. The Court explained that “no procedural device for the taking of guilty pleas is so perfect in design and exercise as to warrant a per se rule rendering it 'uniformly invulnerable to subsequent challenge.’ ” Id. at 73, 97 S.Ct. 1621 (emphasis added) (quoting Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973)). Indeed, contrary to the dissent’s intimations, the Supreme Court has held that not even Rule U’s procedural safeguards immunize a guilty plea from collateral attack or render an evidentiary hearing on a petitioner’s contentions unnecessary. This is so because although “[t]he objective of Fed. Rule Crim. Proc. 11, of course, is to flush out and resolve all such issues, ... like any procedural mechanism, its exercise is [not] always perfect ...” Fontaine, 411 U.S. at 215, 93 S.Ct. 1461 (remanding for an evidentiary hearing); see also United States v. Goodman, 590 F.2d 705, 710 (8th Cir.1979) (noting that “it is well established that compliance with Rule 11 does not act as an absolute bar to subsequent collateral attack upon the voluntariness of a guilty plea”); United States v. Marzgliano, 588 F.2d 395, 399-400 (3d Cir.1978) (same).

Initially, a court must determine “whether [the petitioner’s] allegations, when viewed against the record of the [Rule 11] plea hearing, were so palpably incredible, so patently frivolous or false as to warrant summary dismissal.” Id. at 76, 97 S.Ct. 1621 (internal quotation marks and citations omitted).⁴ Only if a petition er’s allegations can be so characterized can they be summarily dismissed. Id. Even if habeas allegations are not subject to summary dismissal, however, this does not necessarily entitle a petitioner to an evi-dentiary hearing; often, after discovery, a court may determine that no material facts are disputed, and so can resolve even non-frivolous allegations on summary judgment. Id. at 80-81, 97 S.Ct. 1621. But if the parties produce evidence disputing material facts with respect to non-frivolous habeas allegations, a court must hold an evidentiary hearing to resolve those disputes. Id.; see also 28 U.S.C. § 2255 (requiring an evidentiary hearing on a habeas claim “[ujnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief’Xemphasis added); United States v. Magini, 973 F.2d 261, 264 (4th Cir.1992)(stating that a federal court “must hold an evidentiary hearing when the petitioner alleges facts which, if true, would entitle [him] to relief’).

With these governing principles in mind, we turn to the case at hand.

III.

We first examine whether the district court erred in summarily dismissing White’s allegations. In his sworn § 2255 petition, White alleges that “[t]he United States Attorney made an oral agreement that [White’s] guilty plea would be conditional, subject to the appeal of the denial of his suppression motion,” and that his “plea of guilty was ... induced” by this “fraudulent oral agreement.” Despite ample opportunity to respond to these allegations, the Government has steadfastly refused to introduce any affidavit or other direct evidence attesting that no Government agent promised White he could appeal his suppression motion. Nonetheless, without holding an evidentiary hearing, the district court summarily rejected White’s allegations, reasoning that White, during the plea colloquy at his Rule 11 hearing, had affirmed the written plea agreement and had failed to “prove by a preponderance of the evidence that the government made an oral agreement that was not memorialized in the final written plea agreement.”

Although, as Blackledge teaches, a court can summarily dismiss allegations of a petitioner who attempts to challenge statements made during his plea colloquy or in his plea agreement, the district court in this case subjected White’s allegations to the wrong legal standard. A court cannot summarily dismiss a petitioner’s allegations simply because the petitioner has yet to prove them by a preponderance of the evidence. Summary dismissal of habeas allegations is “warrant[ed]” only if a habeas petitioner’s allegations “when viewed against the record of the plea hearing,” are “palpably incredible” or “patently frivolous or false.” Blackledge, 431 U.S. at 76, 97 S.Ct. 1621 (internal quotation marks and citation omitted). Thus, the proper inquiry here is: are White’s sworn allegations that a Government prosecutor made an oral agreement that his guilty plea was conditional “palpably incredible” or “patently frivolous or false” when viewed against the record of White’s plea hearing?

That record undeniably reveals that the sentencing court engaged White in a proper Rule 11 colloquy and that White affirmed his assent to a written agreement that, in fact, contained no provision for a conditional plea. However, neither party disputes that the record of the plea hearing also evidences an involuntary plea, which White entered only because constitutionally ineffective counsel specifically assured him that entering into that plea would not prevent him from appealing the denial of his suppression motion. Moreover, the record demonstrates that neither the written plea agreement nor any aspect of the plea colloquy contradicted defense counsel’s incorrect assurance to White that his plea was conditional. Viewed against this record, we cannot conclude that White’s sworn allegations are “palpably incredible” or “patently frivolous or false.”

First, one of the central purposes of a Rule 11 plea colloquy — to ensure that a “defendant’s plea is truly voluntary” — has been defeated in the case at hand. McCarthy v. United States, 394 U.S. 459, 465, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Ultimately, “the validity of a bargained guilty plea depends ... on the voluntariness and intelligence with which the defendant — and not his counsel — enters the bargained plea.” Harvey, 791 F.2d at 301. But here the Government concedes and the district court held that White’s guilty plea (which implicitly included the waiver of his right to appeal) was involuntary. Thus, in this case, the commendable procedures of the Rule 11 plea colloquy failed to achieve one of their primary purposes — to ensure the voluntariness of White’s guilty plea. As such, it would be perverse to allow White’s affirmations during these proceedings to serve as an insurmountable barrier to his claim.⁵

This is particularly critical given the reason White’s plea has been held involuntary. The Government conceded and the district court held the plea involuntary because Heilberg — the attorney representing White during his plea hearing — was constitutionally ineffective in assuring White that the plea was conditional. Although simply being represented by ineffective counsel, of course, does not entitle a defendant to reformation of a plea agreement, it certainly diminishes the substantial weight normally accorded to a defendant’s in-court representations. See Crawford v. United States, 519 F.2d 347, 350 (4th Cir.1975)(noting, in dicta, that “if the accused has waived counsel at the taking of his plea, his Rule 11 statements may be less conclusive than if he had been represented,” and in those circumstances “an evidentiary hearing is required”), overruled on other grounds by United States v. Whitley, 759 F.2d 327 (4th Cir.1985); Hedman v. United States, 527 F.2d 20, 22 (10th Cir.1975)(distinguishing the Court’s decision to grant an evidentiary hearing in Fontaine in part on the ground that Fon-taine involved an “uncounself ]ed plea”). Moreover, in this case it would be grossly unjust to turn a blind eye to White’s allegations that the Government agreed to preserve his appellate rights when he was represented by counsel deemed ineffective for erroneously informing him of precisely that.

Furthermore, we believe it significant that nothing in the written plea agreement contravenes White’s allegations. Compare Hartman, 825 F.2d at 30. Indeed, the plea agreement nowhere mentions the right to appeal, or waiver of that right. Although a guilty plea constitutes an automatic waiver of non-jurisdictional defects not inconsistent with the establishment of factual guilt as a matter of law, Menna v. New York, 423 U.S. 61, 62-63 n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam), this legal principle would hardly be apparent to a lay defendant, especially when, as here, his own lawyer was not aware of the need to include such a provision in order to preserve his right to appeal.

Nor did the district court orally clarify the issue during the Rule 11 hearing. The court never advised White that by entering into a guilty plea he waived his right to appeal. Moreover, in its only express mention of White’s appellate rights, the court inquired as to whether White “un-derst[oo]d ... that in some circumstances, either you or the Government may have the right to appeal any sentence which I impose[.]” This might confirm to a layman that he had indeed preserved a right to appeal.⁶

The remainder of the plea colloquy did not eliminate the possibility of a layman making this assumption. In it, White acknowledged that he had reviewed the plea agreement, had no questions about it, and fully understood it. He affirmed that it “actually reflect[ed]” his agreement, and that “aside from the plea agreement, ... [nobody] made any other promise or assurance ... of any kind in any effort to induce him to plead guilty.” Neither these nor the other questions put to White during the plea colloquy would have alerted him to the fact that his right to appeal was waived in the absence of a provision preserving that right — particularly when his own lawyer expressly told him otherwise.⁷

Moreover, the dissent’s repeated contention that the district court “questioned both Heilberg and the prosecutor about the agreement’s contents,” post at 304; see also post at 309, is belied by the record. In fact, the judge asked the attorneys just one question about the “agreement’s contents” — whether the assessment fee should be $50 or $100. And, the district court only “asked Heilberg and the prosecutor if there was ‘anything further in the case [at this time] other than to set up a sentencing [date],’ ” post at 304, after the court had accepted the plea agreement, taken White’s plea, adjudged White guilty, and ordered a presentence report. In reality, the attorneys’ “involve[ment] in the Rule 11 colloquy,” post at 309 n. 12, upon which the dissent so heavily relies, consisted of a few terse responses to routine questions having nothing whatsoever to do with the plea agreement.⁸

In sum, this case presents the type of “extraordinary circumstances” that warrant an evidentiary hearing. Despite the dissent’s alarmist rhetoric, this holding does not invite a deluge of evidentiary hearings. This case presents circumstances that must by any definition be considered rare, and simply does not encompass “nearly every [instance where] a prisoner files a § 2255 petition alleging that he was induced to plead guilty by an oral promise from the prosecutor.” Post at 303. Indeed, the dissent is able to posit its slippery slope argument only by ignoring the unique factual circumstances at issue in this case. Here, we view White’s sworn allegations (and the lack of any sworn denial from the Government) against the record of a plea hearing involving: an involuntary plea, a defendant relying on mistaken advice from constitutionally ineffective counsel, a plea agreement that does not contradict the defendant’s understanding, and a Rule 11 colloquy that also fails to negate the erroneous advice provided by constitutionally ineffective counsel. Under these extraordinary circumstances, we believe it clear that White’s allegations cannot be deemed “palpably incredible” or “patently frivolous or false.” Accordingly, the district court erred in summarily dismissing those allegations.

IV.

We therefore must consider whether White’s non-frivolous allegations that the Government orally promised he could conditionally plead can be resolved without an evidentiary hearing. As noted above, summary judgment provides a viable mechanism for disposing of even non-frivolous habeas petitions in the proper case. See Blackledge, 431 U.S. at 80-81, 97 S.Ct. 1621. Of course, the district court did not purport to grant summary judgment here. Rather, the court weighed the evidence under a “preponderance of the evidence” standard — a standard altogether foreign to summary judgment.

Nevertheless, both sides — White and the Government — contend that the district court could, and should, have granted summary judgment in its favor. “The fact that both parties simultaneously are arguing that there is no genuine issue of fact does not establish that a trial is unnecessary thereby empowering the court to enter judgment as it sees fit.” TFWS v. Schaefer, 325 F.3d 234, 241 (4th Cir.2003)(internal quotation marks and citation omitted). Rather, a court may grant summary judgment only when “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law,” Fed.R.Civ.P. 56(c), with “any permissible inferences ... drawn from the underlying facts to be viewed in the light most favorable to the party opposing the motion.” United States v. Lee, 943 F.2d 366, 368 (4th Cir.1991).

The Government’s claimed entitlement to summary judgment rests largely on its repeated contention in court submissions that it did not orally agree to a conditional plea. But an attorney’s unsworn argument does not constitute evidence, and the Government has offered no affidavit, deposition, sworn statement, or other direct evidence that a Government agent did not make the oral promise. The only proof the Government offers that it made no such promise is the plea colloquy and written plea agreement. Although as noted above they “carry a strong presumption of verity,” they do not render a guilty plea “invulnerable,” Blackledge, 431 U.S. at 73, 74, 97 S.Ct. 1621 (internal quotation marks omitted), particularly given that the only evidence directly addressing the alleged oral promise — White’s sworn § 2255 petition — sup-ports the view that the Government did make that promise.

In his sworn petition, White unequivocally states that “[t]he United States Attorney made an oral agreement that [White’s] guilty plea would be conditional, subject to the appeal of the denial of his suppression motion.”⁹ Moreover, White has also offered as evidence an affidavit from his counsel during plea negotiations. Heilberg does not directly attest to entering into an oral agreement with the Government, but he does swear that he provided ineffective assistance of counsel by “not invoking the technical requirements of Rule 11(a)(2).” Drawing “all permissible inferences” from his affidavit in White’s favor, a court could reasonably infer that the “technical requirements of Rule 11(a)(2),” which Heilberg failed to “in-vok[e]”, refer to his failure to incorporate the Government’s oral promise into the final written plea agreement. Indeed, it is difficult to imagine how the total failure to obtain the Government’s consent to a conditional plea could be characterized as just a “technical” requirement.

In sum, the record evidence to date certainly contains a dispute of material fact sufficient to preclude the grant of summary judgment to the Government. See Peavy v. United States, 31 F.3d 1341, 1346 (6th Cir.1994)(finding petitioner entitled to an evidentiary hearing when the only evidence in the record was an affidavit supporting petitioner’s claims, and con-eluding that “the government must present evidence in support of its position,” and that its “unverified responses ... were plainly inadequate”).

We find White’s contention that he merits summary judgment equally unpersuasive. White principally bases his argument on statements made by the Government in its Motion for Partial Summary Judgment, responding to White’s sworn § 2255 petition. There, the Government stated, inter alia,

no material factual issues [are] in contention .... Petitioner has alleged facts which, even if not true, would entitle him to a hearing, and ... the United States’ evidence on these points would likely not overcome the petitioner’s evidence, if the petitioner’s evidence were believed.

White maintains that by these statements, the Government conceded that it made the alleged oral promise that White could enter a conditional guilty plea.

This argument ignores the very next paragraph of the Government’s Motion, which clarifies that “[i]n reaching this conclusion,” it “relies exclusively” on Heil-berg’s sworn affidavit admitting that “his own professional errors deprived White of an opportunity to preserve his appeal after the plea,” errors which the Government recognized “ma[de] out a prima facie case of ineffective assistance of counsel.” Thus, the Government plainly did not concede that it had made the alleged oral promise; it simply conceded that White had produced evidence demonstrating ineffective assistance of counsel.¹⁰

White also relies on the assertion of Heilberg that “the Government breached its verbal agreement to permit White to enter his conditional guilty plea.” However, this assertion appears not in Heilberg’s affidavit or in any other sworn statement, but in a reply brief filed in the direct appeal in this case that White submitted as an exhibit to his habeas motion. Just as we concluded that the contrary unsworn statements in memoranda filed by Government counsel do not constitute evidence so, too, we cannot regard this statement as evidence. All of the other evidence on which White relies as support for the grant of summary judgment establishes simply that he received ineffective assistance of counsel and that his plea was involuntary; none of it goes to the question of whether the Government actually made the alleged oral promise. In sum, just as the undisputed facts fail to demonstrate that the Government did not make an oral promise, they also fail to demonstrate the Government did make the alleged promise. Rather, the facts as to this all-important matter are hotly disputed. Summary judgment on this record would clearly be improper.

Indeed, the need for an evidentiary hearing is particularly compelling in this case. Although neither defense nor Government counsel has directly attested under oath to the existence of an oral agreement (nor were they questioned about the agreement during the Rule 11 hearing), both have made express representations in their court submissions, acting as officers of the court, and those representations directly contradict each other. When, as here, the factual allegations “relate[] primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light,” Machibroda v. United States, 368 U.S. 487, 494-95, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), and where the ultimate resolution rests on a credibility determination, Raines v. United States, 423 F.2d 526, 530 (4th Cir.1970), an evidentiary hearing is especially warranted.

Accordingly, we remand for an eviden-tiary hearing on the question of whether the Government did make the alleged oral promise that White’s plea was conditional, permitting him to appeal denial of the suppression motion.¹¹ We note that even if the district court concludes after that hearing that the Government orally agreed to a conditional plea, this does not necessarily entitle White to reformation of his plea agreement. Although “a court ought to accord a defendant’s [remedial] preference considerable, if not controlling, weight” in determining the appropriate relief, Santobello, 404 U.S. at 267, 92 S.Ct. 495 (Douglas, J., concurring), Fed.R.Crim.P. 11(a)(2) grants the district court “absolute discretion with regard to accepting or rejecting the conditional plea,” and the court “can refuse to accept [it] for any reason or for no reason.” See United States v. Davis, 900 F.2d 1524, 1527 (10th Cir.1990); see also United States v. Muldoon, 931 F.2d 282, 288 (4th Cir.1991).

V.

For all of these reasons, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion.

VACATED AND REMANDED

1 . Courts have interpreted Fed.R.Crim.P. 11(a)(2) to make “direct review of an adverse ruling on a pre-trial motion ... available only if the defendant expressly preserves that right by entering a conditional guilty plea.” United States v. Wiggins, 905 F.2d 51, 52 (4th Cir.1990).

2 . Although never asserting that White somehow failed to preserve a reformation remedy, the Government also criticized White’s "unreliable expression of [remedial] preference.” But it is well-established that pursuant to Fed.R.Civ.P. 54(c), a court has broad power to "grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.” See Minyard Enters., Inc. v. Southeastern Chem. & Solvent Co., 184 F.3d 373, 385-86 (4th Cir.1999). The dissent does not challenge this statement of hornbook law, but it does intimate that White improperly seeks to retain the sentence he received under the plea agreement and pursue an appeal of the denial of his suppression motion. See post at 305-306. But there is nothing improper about this request — if the Government agreed to a conditional plea, then, as Government counsel conceded at oral argument, White certainly would be "entitled” to seek to hold the Government to its promise and retain the benefit of his bargain.

3 . Hartman v. Blankenship, 825 F.2d 26, 29 (4th Cir.1987), which preceded Garcia, contains some dicta suggesting that a defendant can never use parol evidence to vary the terms of an unambiguous written plea agreement. But Hartman itself goes on to acknowledge that this is not always the case. See id. (noting that "the record made in the arraignment proceeding [i.e. the Rule 11 colloquy and plea agreement] is not invariably immune from post-conviction attack”); see also Blackledge v. Allison, 431 U.S. 63, 74-75 & n. 6, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Bemis v. United States, 30 F.3d 220, 222-23 (1st Cir.1994) (collecting cases). Moreover, the holding in Hartman presents no conflict with our holding in this case. In Hartman, this court refused to permit the grant of a writ of habeas corpus when the state court, after holding an evidentiary hearing, rejected petitioner's allegation that the prosecutor had made an oral promise expressly contradicted by the written plea agreement, 825 F.2d at 26-28, whereas here, we only require an evidentiary hearing (not the grant of a writ of habeas corpus) to determine if a prosecutor made an oral promise, a promise that is not expressly contradicted by anything in the written plea agreement.

4 . The dissent maintains that this is not the "proper test”; that it does not apply when "procedures similar to those dictated by Rule 11 ” are utilized. Post at 306-307. According to the dissent, after a Rule 11 colloquy, an evidentiary hearing is only available in the "most extraordinary circumstances.” Id. at 307. We agree that when Rule ll's safeguards are afforded to a defendant, an eviden-tiary hearing will indeed be rare, but stating that a hearing is only available in "extraordinary circumstances” begs the question of when such circumstances exist. To answer this question, a court must weigh a petitioner's allegations against the record (including the Rule 11 plea colloquy) as mandated by Blackledge. In conducting this analysis, often the petitioner’s allegations will be deemed "palpably incredible" or "patently frivolous or false” in light of affirmations made at the Rule 11 hearing. But, the Blackledge "palpably incredible” test still applies when petitioners have been provided proper plea procedures, see e.g., Tran v. Lockhart, 849 F.2d 1064, 1067-69 (8th Cir.1988); Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985); United States v. Unger, 665 F.2d 251, 254 (8th Cir.1981); McKenzie v. Wainwright, 632 F.2d 649, 651-52 (5th Cir.1980), though petitioners will only be able to satisfy it in "extraordinary circumstances.” No case cited by the dissent espouses the dissent's theory, i.e. that after a Rule 11 hearing or its equivalent, the "palpably incredible” standard does not apply. Indeed, in the dissent's lead case, in the course of denying a petitioner an evidentiary hearing because the case did not involve "extraordinary circumstances,” the Tenth Circuit expressly relied on and quoted its earlier interpretation of Blackledge, refusing to order an evidentiary hearing because petitioner's claims were "wholly incredible.” See Lasiter v. Thomas, 89 F.3d 699, 703 (10th Cir.1996)(quoting Phillips v. Murphy, 796 F.2d 1303, 1305 (10th Cir.1986)).

5 . Although the dissent acknowledges that White "[u]nquestionably” entered "an unknowing and involuntary plea,” it nonetheless insists that White’s affirmations be given conclusive weight. Post at 308. But the reason why a petitioner's statements during the Rule 11 hearing are often conclusive is because the procedural safeguards are believed sufficient to demonstrate voluntariness. See United States v. Bowman, 348 F.3d 408, 417 (4th Cir.2003) ("The Rule 11 colloquy is designed to provide a structure to protect the defendant against making an uninformed and involuntary decision to plead guilty ... ”) (emphasis added); see also Pennington v. Housewright, 666 F.2d 329, 332 (8th Cir.1981). When, as here, these admittedly imperfect safeguards fail, and the colloquy is tainted by involuntariness, the weight given to a defendant’s declarations must be diminished accordingly. None of the cases relied on by the dissent suggest otherwise; indeed, none of them involve a concededly involuntary plea.

6 . We do not suggest that the district court in any way violated Rule 11; that rule "does not require a district court to inform a defendant that, by pleading guilty, [he] is waiving [his] right to appeal any antecedent rulings or constitutional violations.” See United States v. Floyd, 108 F.3d 202, 204 n. 2 (9th Cir.1997).

7 . To the extent that the dissent seeks to portray White as a well-educated and savvy career criminal, more astute than a mere "lay person,” post at 303-304 n. 2, this characterization is not borne out by the record. In fact, White scored a 60 and 79 on his two IQ tests, dropped out of high school in the eleventh grade, and although he attended college, he received "poor” grades and only accrued nine credits during a two-year period. And, although White was sentenced as a career offender because of two prior drug offenses, he had only been in federal court on one previous occasion.

8 .For example, Heilberg, White's lawyer, spoke only fifty-eight words (less words than in this footnote) during the entire thirty-minute plea hearing. Thus, contrary to the dissent's suggestion, post at 309-310, the lawyers' minimal involvement in the plea colloquy here is a far cry from that mandated by the revised North Carolina procedures that the Blackledge Court found "commendable.” See Blackledge, 431 U.S. at 79, 97 S.Ct. 1621 (explaining that the revised North Carolina procedures require "Specific inquiry about whether a plea bargain has been struck” of defense "counsel and the prosecutor”).

9 . Of course, simply filing a sworn declaration alleging that the Government made promises outside the written plea agreement does not make those allegations non-frivolous, and certainly does not entitle the petitioner to an evidentiary hearing. Rather, a petitioner must first overcome the "formidable barrier” erected by the representations he made in open court at the plea proceedings, and even then, as detailed above, an evidentiary hearing may not be required. See Blackledge, 431 U.S. at 74, 97 S.Ct. 1621.

10 . Alternatively, relying on Fed.R.Civ.P. 8(d), White contends that the Government’s "response,” by failing to deny his sworn allegations of an oral promise, must be "deemed” to have admitted those allegations. We disagree. See Rule 12 of the Rules Governing § 2255 Proceedings for United States District Courts (stating district court may apply the Federal Rules of Civil Procedure); see also Fed.R.Civ.P. 8(d)(referring to responsive pleadings, not motions); Rule 5 of the Rules Governing § 2255 Proceedings for United States District Courts (governing contents of answer, not motion).

11 . Of course, if one side concedes the correctness of the other’s position on this issue, eliminating any factual dispute, no hearing would be necessary.